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2018 DIGILAW 3101 (PNJ)

Partap Singh v. Kulwant Ram

2018-07-27

AMIT RAWAL

body2018
JUDGMENT Mr. Amit Rawal, J. (Oral):- The appellants are in present regular second appeal against the judgment and decree of the lower Appellate Court dated 09.08.1997, whereby the suit seeking declaration by challenging the orders dated 26.02.1988 and 06.04.1988, decreed by the trial Court vide judgment and decree dated 22.12.1993, has been dismissed. 2. The suit, aforementioned, was filed on the premise that in a proceeding initiated under Section 24 of the Haryana Canal and Drainage Act, 1974 (in short ‘the 1974 Act’), watercourse was ordered to be restored in favour of the respondents-defendants, which was assailed by the appellants-plaintiffs in the Civil Court on the premise that the action of the authorities passing the orders was erroneous. 3. The aforesaid suit was contested by the defendants on the premise that the suit was not maintainable in view of the provisions of Section 25 of the 1974 Act. The trial Court while noticing the provisions of Section 24 of the 1974 Act decreed the suit by holding that the said provisions could only be pressed into service, when the watercourse, which was sanctioned, is in existence or by prescriptions, sought to be demolished. Lower Appellate Court noticing the aforementioned provisions of law upheld the findings on issue Nos.3 to 8 of the trial Court, but reversed the findings viz-a-viz issue Nos.1 and 2 on the premise that watercourse, where warabandi had been sanctioned, would be treated to be as sanctioned watercourse and the Sub-Divisional Canal Officer, therefore, would have jurisdiction to entertain the application, thus, the orders cannot be said to be without illegality. 4. As per the memorandum of appeal, it has been argued that the lower Appellate Court has misread the provisions of Section 24 of the 1974 Act as the private respondents did not have any cause of action to submit an application, which could be allowed vide impugned orders (Ex.D4 and Ex.D5), for, there was no sanctioned watercourse or any warabandi. There is patent illegality and perversity. A procedure has been prescribed for sanctioning of the watercourse under the Act and rightly so, the trial Court found the order of the authorities without any jurisdiction. The lower Appellate Court had not noticed that all the pre-requisite conditions were required to be fulfilled for entertaining the application, which was not taken care of and sanctioning of the watercourse cannot be sole basis for restoration of the watercourse. The lower Appellate Court had not noticed that all the pre-requisite conditions were required to be fulfilled for entertaining the application, which was not taken care of and sanctioning of the watercourse cannot be sole basis for restoration of the watercourse. 5. Per contra, learned counsel for the respondents-defendants submitted that the Civil Court did not have jurisdiction as per the provisions of Section 25 of the 1974 Act. Though against the order of Sub-Divisional Canal Officer, the appellants-plaintiffs preferred an appeal before the Divisional Canal Officer, which was dismissed, therefore, the remedy would be under Article 226 of the Constitution of India. The trial Court has misread and misconstrued the provisions of Section 24 of the 1974 Act, therefore, there is gross illegality and perversity and the lower Appellate Court being the last court of fact and law rightly held that the orders of the authorities were legal and in accordance with law, thus, urges this Court for dismissal of the regular second appeal. 6. I have heard learned counsel for the parties and appraised the paper book as well as records of the Courts below. 7. It would be apt to reproduce the provisions of Sections 24 and 25 of the 1974 Act, which read as under:- ‘’Section 24 Restoration of demolished or altered etc. watercourse 24. (1) If a person demolishes, alters, enlarges or obstructs a watercourse or a temporary watercourse or causes any damage thereto, any person affected thereby may apply to the Sub-Divisional Canal Officer for directing the restoration of the same to its original condition. (2) On receiving an application under sub-section (1) the Sub Divisional Canal Officer may, after making such enquiry as he may deem fit, require, by a notice in writing served on the person found to be responsible for so demolishing, altering, enlarging, obstructing or causing damage, to restore, at his own cost, the watercourse or temporary watercourse to its original condition within such period not exceeding twenty-one days, as may be specified in the notice: Provided that in case of a temporary watercourse its restoration shall not be for a period exceeding one year. (3) If such person fails to the satisfaction of the Sub-Divisional Canal Officer, to restore the watercourse or temporary watercourse to its original condition within the period specified in the notice served on him under sub-section (2) the Sub Divisional Canal Officer may cause the watercourse or temporary watercourse to be restored to its original condition and recover the cost incurred in respect of such restoration from the defaulting person. The Sub-Divisional Canal Officer may order recovery of a sum not exceeding Rs.500 from the defaulting person by way of penalty. Out of this sum so recovered the Sub-Divisional Canal officer may order any amount to be paid to the aggrieved person for the damage caused to him. In case the penalty is not paid the same shall be recoverable as arrears of land revenue. (4) Any person aggrieved by the order of the Sub-Divisional Canal Officer, may prefer an appeal within fifteen days of the passing of such order to the Divisional Canal Officer, whose decision on such appeal shall be final. (5) Any sum which remains unpaid within a period to be specified for this purpose by the Divisional Canal Officer may be recovered as arrears of land revenue. Section 25 Bar of Jurisdiction of civil court 25. Notwithstanding anything contained in this Act or any other law for the time being in force, no civil court shall have jurisdiction to entertain or decide any question relating to matters falling under section 17 to 24.’’ 8. There is no such reference that watercourse can be restored only circumstances referred to in impugned judgment. Warabandi can be one of the grounds for forming an opinion that it was a watercourse by prescriptions, therefore, demolition thereon had definitely given a cause to the affected party to move an application under the aforementioned provisions of 1974 Act. This is what the import of the judgment and decree of the lower Appellate Court being last Court of fact and law. The factum of fixing of the warabandi on the watercourse was not denied, rather had been proved to the hilt. In my view, the findings of the lower Appellate Court cannot be said to be suffering from the illegality and perversity. 9. No ground is made out for interference. 10. Accordingly, the present regular second appeal is dismissed. 11. Status quo order dated 06.10.1997 is ordered to be vacated.